Her Majesty the Queen v. Gerard Comeau

Over four days in late August, 2015 the harrowing tale of Mr. Comeau’s fateful trip across the J.C. Van Horne Bridge that connects Quebec and New Brunswick, with a trunk full of booze, was played out in a court room in the town of Campbellton, New Brunswick – population 7, 385.

The facts were straightforward, and are now well known: Mr. Comeau, like so many other New Brunswick residents, from time-to-time made the trek to a liquor store just inside the border of Quebec to take advantage of cheaper alcohol prices. What Mr. Comeau did not know was that on his now historic trip across the Restigouche River he was under surveillance by the Campbellton RCMP and their counterparts in Quebec. To be certain, there was no complaint filed with the RCMP to initiate this investigation. R. v. Comeau was the result of an RCMP generated crime reduction initiative.

Under New Brunswick’sLiquor Control Act, it is unlawful in New Brunswick to have in your possession more than 12 pints of beer purchased outside of New Brunswick. On October 6, 2012 Mr. Comeau had in his trunk 354 bottles or cans of beer and three bottles of hard liquor. He was over the limit.

The police were targeting people who had in excess of five cases of beer in their possession when they crossed the border from Quebec into New Brunswick. The operation involved surveillance by Quebec RCMP of persons from New Brunswick (as identified by their vehicle licence plates) shopping at liquor stores in Quebec. The RCMP would follow the individuals seen to be stocking up on more than five cases of beer, in unmarked cars, onto the bridge heading back to New Brunswick, and would radio ahead to the New Brunswick RCMP and provide them with the licence plate and vehicle description of the suspect. The New Brunswick RCMP would then pull over the identified vehicle on the New Brunswick side of the bridge and search it for “illegal alcohol”. The operation lasted two days. It is not known how many tickets were issued for this type of infraction. Mr. Comeau’s ticket was in the amount of $292.50.

Mr. Comeau’s decision to challenge the ticket, rather than shake his head and pay the fine, was significant. What was probably not known to him at the time, but is now known by even the most casual observer of liquor law and policy in this country, is that the decision of the Honourable Judge Ronald LeBlanc, issued April 29, 2016 will one way or another change the way provinces in Canada tax and restrict the sale and transportation of beverage alcohol.

The reasons for judgment in R. v. Comeau were substantial: 194 paragraphs spread over 86 pages. The decision is a pleasure to read, wading deeply into historical and constitutional issues rarely dealt with by modern Canadian courts; it is easy to lose sight of the fact that at issue was a ticket in the amount of $292.50.

For those readers who don’t have the time, or are not inclined, to parse through Judge LeBlanc’s reasons, Alcohol & Advocacy offers up the top ten facts from R. v. Comeau you need to know:

The issue before the court was whether or not s.134(b) of the New Brunswick Liquor Control Act was an enforceable provincial law, or whether it constituted a “trade barrier” that is contrary to s.121 of the Constitution Act, 1867.

Section 134(b) of the Liquor Control Act provides that (with some exceptions) no person within the province of New Brunswick shall have in their possession liquor not purchased from the New Brunswick Liquor Corporation in excess of one bottle, or in the case of beer 12 pints.

However, s.121 of the Constitution Act, 1867 provides that all articles of growth, produce or manufacture of any of the provinces, shall be admitted free into each of the other provinces.

Mr. Comeau argued that s.134(b) of the Liquor Control Act is an impermissible barrier to free trade between the provinces. The Crown’s position was that s.121 of the Constitution Act, 1867 should be read as only limiting laws that create cross-border tariffs or duties (as opposed to mere restrictions on quantity).

Seem simple? You aren’t wrong. Judge LeBlanc observed that the “simplicity of the issue is rivalled only by the complexity of the factors that the Court must consider in arriving at its conclusion. The very nature of the Canadian federation is at stake.”

The contents of Mr. Comeau’s trunk was as follows:

2 cases of 24 bottles of Sleeman’s Light beer;

2 cases of 24 bottles of Miller Genuine Draft beer;

2 cases of 24 bottles of Molson M beer;

3 cases of 20 bottles of Budweiser Light beer;

3 cases of 20 bottles of Budweiser beer;

3 cases of 30 cans of Coors Light beer;

2 bottles of whiskey, 750 ml per bottle; and

1 bottle of Stinger Premixxx liqueur, 1.4 litre.

The Maritime Beer Accord (a handshake deal made in 1993 between some Maritime premiers) carved out a free trade beer zone between New Brunswick, Nova Scotia and Prince Edward Island. In New Brunswick beer produced in Nova Scotia and Prince Edward Island is treated like beer produced within the province, whereas beer produced in Ontario, Quebec and other provinces is subject to additional warehousing fees.

A British government lawyer named Francis Savage Reilly, born in Dublin, Ireland in 1825 and called to the English bar in 1851 was the drafter of s.121 of (what was then known as) the British North America Act, 1867, later renamed the Constitution Act, 1867 in 1982.

The historical context surrounding the drafting of the British North America Act, 1867 led Judge LeBlanc to the conclusion that the Fathers of Confederation wanted to implement free trade as between the provinces of the newly formed Canada.

Judge LeBlanc, boldly going against established (albeit dated) Supreme Court of Canada precedent, held that earlier decisions on the proper interpretation of s.121 of the Constitution Act, 1867 were wrongly decided and that properly considered, s.134(b) of the Liquor Control Act of New Brunswick constitutes a trade barrier which violates s.121 of the Constitution Act, 1867 and is therefore of no force or effect as against Gerard Comeau. Charge dismissed.

While the forgoing should make you reasonably conversant on the topic for cocktail parties, or the upcoming Vancouver Craft Beer Week, it is an oversimplification of a lengthy and complex judgement.

R. v. Comeau may have been decided in a small town on the other side of the country, but the potential ramifications for liquor law in British Columbia are real. British Columbia, like many provinces, has legislation similar to New Brunswick that restricts the amount of alcohol an individual may possess that was purchased in another province. British Columbia’sLiquor Possession Regulation currently provides that an individual in British Columbia may possess liquor from another province if it does not exceed 3 litres, in the case of spirits, and 25.6 litres in the case of beer.

It may seem hard to believe, but it was only four years ago that Rich Coleman, the then minister responsible for the British Columbia Liquor Distribution Branch introduced that Regulation. Now it looks as though the government will need to once again revisit its inter-provincial transportation regime if it wishes for British Columbia to remain a truly progressive jurisdiction.

We have not heard the end of the R. v. Comeau. The decision will likely be appealed, and its uncertain at this time how the government of New Brunswick, and the liquor control boards across the country intend to respond to the provincial court judge’s findings. Alcohol & Advocacy will be monitoring the situation closely.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

Alcohol & Advocacy is a blog intended to provide general information and commentary for those working in the brewing and hospitality industry. Although we make our best efforts to ensure the information found on our website is accurate, we cannot guarantee it. Nothing on this website should be considered legal advice. Do not under any circumstances rely on information published on this website in place of seeking legal counsel. If you or your business require legal advice Daniel H. Coles or the lawyers at Owen Bird Law Corporation would be pleased to provide such advice.